Last year Linden Lab, the company that runs the virtual world of Second Life, banned sexual ageplay in its world. The policy specifically prohibited “depictions of or engagement in sexualized conduct with avatars that resemble children,” and clarified an earlier statement that was widely seen as overbroad. This hit VB’s radar screen because although “virtual child pornography” is illegal in most countries, a law attempting to make it illegal in the U.S. had actually been struck down by the Supreme Court in Ashcroft v. Free Speech Coalition.

After the Ashcroft decision, Congress went back to the drawing board and passed a new law, 2003′s PROTECT Act. Part of that law prohibits certain (though not all) types of virtual child pornography, and another part specifically prohibits obscene virtual child pornography. This law likely influenced Linden Lab’s ban.

From the statute:

Sec. 1466A. Obscene visual representations of the sexual abuse of children
(a) IN GENERAL- Any person who, in a circumstance described in subsection (d), knowingly produces, distributes, receives, or possesses with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that–
(1)(A) depicts a minor engaging in sexually explicit conduct; and
(B) is obscene; or
(2)(A) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; and
(B) lacks serious literary, artistic, political, or scientific value;
or attempts or conspires to do so, shall be subject to the penalties provided in section 2252A(b)(1), including the penalties provided for cases involving a prior conviction.

Basically, the law limits legal “virtual child pornography” to material that either doesn’t depict explicit sexual acts (under Section 2) or isn’t “obscene” (under Section 1). It appears that the drafters built this law so that even if Section 2 were to be held unconstitutional (under the well-known Miller test, “obscenity” is determined based on contemporary community standards, which makes specific prohibitions somewhat suspect) Section 1 could be left intact — and thus “obscene” virtual child pornography would remain prohibited even if the more explicit provision was found unconstitutional.

It may not matter anyway. While this is admittedly speculative, it seems that most of what Section 2 prohibits would also be found “obscene” even under the relatively lax “contemporary community standards” of an adult-based virtual world like Second Life, and certainly under the contemporary community standards of most real life U.S. communities.

A recent Supreme Court opinion addressed this new law, albeit somewhat tangentially, and appeared to at least tacitly endorse the provisions regarding virtual child pornography. The case, U.S. v. Williams (.pdf), isn’t directly about virtual child pornography — it is largely about whether Congress can make the act of merely offering to provide real child pornography illegal, which the Court held it could — but it does refer to the provision.

From the 7-2 majority opinion, by Justice Scalia:

[T]he dissent accuses us of silently overruling our prior decisions in Ferber and Free Speech Coalition. According to the dissent, Congress has made an end-run around the First Amendment’s protection of virtual child pornography by prohibiting proposals to transact in such images rather than prohibiting the images themselves. But an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means “a protected category of expression [will] inevitably be suppressed.” Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.

The opinion does not directly support this statute’s provisions prohibiting “obscene” virtual child pornography and simulated depictions of specific acts, but it doesn’t fire any warning shots indicating the provisions might be held unconstitutional either. It seems, both in light of this holding and the recent negative press regarding user-generated adult content in Second Life, that Linden Lab was smart to move as it did to explicitly ban specific acts that arguably violate this law last November.

I double checked the wording of the statute and here’s why I think it will be eventually struck down, or at least altered.

Intent to distribute does not modify knowingly produces. The obscenity laws, and one of the reasons why obscenity is allowed as a crime in a country with a First Amendment, only prosecute distribution, not creation. With no children involved with the production, I think the parts of this law that relates to production without distribution will fall.

It seems this law had permanent fixed images in mind, rather than ephemeral, impermanent in-world encounters. Would an in-world sexual encounter between 2 avatars constitute a “visual depiction” if no permanent image is created? And, for purposes of determining whether it is obscene, what would be considered the work as a whole? Would it be from the moment the avatars began the animation in question until they stopped, or would it be from the time they each logged on and then logged off for for the session that included the encounter, or is it the whole of their online existence? And what would the applicable community be?

I sentence all law makers to 6 months in second life so they can grasp just how lame it is. They should just worry about protecting actual kids in the real world. It’s mind-blowing how much law makers suck at the internets. Get with the program people, it’s out of beta and it’s not slowing down. props for trying I guess, I’m all for protecting the children.

I do hope this law does not outlaw scientific illustration, like explaining “Why are my arms hairy?”, and “muh, boob’s are growing, wtf mom” type questions, and base models used for making awesome movies like toy story. Those kids were digitally nude at one point it’s how digital models are made.

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About Virtually Blind

From early 2007 to late 2008, Virtually Blind covered legal news, issues, and events that impact virtual worlds, video games, and the 3D internet. The site is no longer updated, though it remains online as a research resource.

Posts and comments on VB were and are not offered as legal advice, and are not confidential attorney-client communication. Posts and comments reflect only the opinion of the author, and do not necessarily represent the opinion of VB's editor, other contributors, sponsors, or any author's employer.